By Stephen Dinan and Susan Crabtree -
The Washington Times -
Wednesday, January 4, 2012

Pushing the limits of his recess appointment powers, President Obama on Wednesday bypassed the Senate to install three members of the National Labor Relations Board and a director for the controversial new Consumer Financial Protection Bureau — moves Republicans said amounted to unconstitutional power grabs.

Mr. Obama said the appointments, which he previewed during a campaign-style speech in Ohio, were necessary because Senate Republicans have blocked him at every turn. But in making the move, he rejected three precedents, including two in which he played a part, that would have blocked the appointments.

“I refuse to take ‘no’ for an answer,” Mr. Obama said in Shaker Heights, drawing applause from his audience. “When Congress refuses to act and as a result hurts our economy and puts our people at risk, then I have an obligation as president to do what I can without them.”

Mr. Obama tapped former Ohio Attorney General Richard Cordray to head the consumer protection agency and named three others — two Democrats and one Republican — to the labor board. Those nominations had all been stymied by congressional Republicans, who said Mr. Obama was accruing too much power to himself through those two agencies.

The president acted just a day after the Senate held a session, albeit a pro forma one without any business transacted.

Senators from both parties — including Democrats in 2007 and 2008, when Mr. Obama was in the Senate — have said it takes a recess of at least three days before the president can use his appointment powers.

Mr. Obama’s move threatens to ignite an all-out legislative war with Congress, and Republicans reacted with strikingly sharp language.

“Breaking from this precedent lands this appointee in uncertain legal territory, threatens the confirmation process and fundamentally endangers the Congress’ role in providing a check on the excesses of the executive branch,” he said.

Supporters of the Consumer Financial Protection Bureau have said the lack of a top executive has blocked the fledgling agency from taking on a number of tasks in its mandate to police the financial sector and protect consumers from fraud.

Consumer groups and labor union advocates cheered Mr. Obama’s moves.

Senate Republicans don’t object to Mr. Cordray, but argue the bureau needs an overhaul before it should be allowed to operate. They say it leaves the agency, whose budget is not approved by Congress, with too much power concentrated in the hands of its director.

Senate Republicans last month filibustered Mr. Cordray’s nomination, leaving him seven shy of the 60 votes needed to get a final confirmation vote.

Democrats and Republicans have increasingly turned to filibusters to block a president’s nominees when they are in the majority, making recess appointments an attractive option.

President George W. Bush used them to circumvent Democrats who filibustered judicial nominations and his pick of John R. Bolton to be ambassador to the United Nations.

The Constitution gives the president the power to make appointments when the Senate is not in session. Back when Congress was part time, that gave the president power to fill posts that otherwise might go unfilled for months.

During the past few congressional vacations, House Republicans have insisted on coming in for pro forma sessions every three days, triggering a clause in the Constitution that forces the Senate also to come into session.

Presidential spokesman Jay Carney said the White House doesn’t consider pro forma sessions to be actual work by Congress. Even though the Senate has been convening in those sessions every three days, he said, “the president’s counsel has determined that the Senate has been in recess for weeks and will be in recess for weeks.”

It’s a thorny question, and some legal authorities have agreed with Mr. Obama’s analysis.

But at least three major precedents suggest otherwise.

The Clinton administration argued that there must be a recess of at least three days to trigger the recess appointment clause. Mr. Obama’s top constitutional attorneys at the solicitor general’s office also subscribed to the three-day rule in oral arguments before the Supreme Court in 2010.

“The recess appointment power can work in a recess. I think our office has opined the recess has to be longer than three days,” Neal Katyal, then deputy solicitor general, told Chief Justice John G. Roberts Jr.

Mr. Katyal, who is now a professor at Georgetown University, did not respond to a request for comment Wednesday.

The third precedent involves Mr. Obama’s fellow Senate Democrats who, after taking control of the chamber, used pro forma sessions to stop Mr. Bush from making recess appointments in 2007 and 2008.

“I had to keep the Senate in pro-forma sessions to block the [Steven G.] Bradbury appointment. That necessarily meant no recess appointments could be made,” Senate Majority Leader Harry Reid, Nevada Democrat, said as he summed up the legal consensus in 2008. Mr. Obama was in the Senate at the time.

Mr. Bradbury, an administration attorney, was nominated by Mr. Bush’s in 2005, to be an assistant attorney general, but never received a vote by the full Senate.

On Wednesday, though, Mr. Reid reversed course and said he backed the president’s move. A spokesman didn’t respond to a request for comment on what changed in Mr. Reid’s thinking on the constitutional question.

Other Democrats who were also in the Senate in 2007 and 2008 cheered Mr. Obama’s appointments, saying the GOP’s obstruction had gone too far. Instead of the constitutional questions, they highlighted the work the Consumer Financial Protection Bureau can do.

“The Senate minority’s attempt to defang the Consumer Financial Protection Bureau by depriving it of leadership is unprecedented, hurts middle-class consumers, and needed to be challenged,” said Sen Charles E. Schumer, New York Democrat. “It is clear President Obama is doing the right thing by putting a real consumer cop like Mr. Cordray on the beat to protect the middle class.”

Part of the confusion is that the word “session” has different meanings in the Constitution. Each daily meeting is known as a “session,” but each two-year Congress is also divided into two sessions, and each begins on Jan. 3 every year.

During Tuesday’s pro forma meeting, the Senate officially gaveled out the first session of the 112th Congress and gaveled in the second session.

There is precedent for making a recess appointment in between those kinds of sessions. In 1903, President Roosevelt used the instant one session was gaveled out and another was gaveled in to make a series of appointments. That is known as an “inter-session” appointment.

Mr. Obama did not follow that route and instead made what scholars call an “intra-session” appointment, on which the Constitution is far more vague.

Mr. Obama early Wednesday signaled he would use his powers to install Mr. Cordray, but Mr. McConnell said he “upped the ante” by also making recess appointments for the three NLRB appointments. Mr. Obama announced appointments of Deputy Labor Secretary Sharon Block, union lawyer Richard Griffin and National Labor Relations counsel Terence Flynn to fill vacancies on the five-member board, giving it a full contingent for the first time in more than a year.

Ms. Block and Mr. Griffin are Democrats, and Mr. Flynn is a Republican.

Mr. Obama nominated Ms. Block and Mr. Griffin on Dec. 17, just two days before senators went home for a monthlong vacation. Mr. McConnell said that means the two have been installed without facing congressional scrutiny.

“What the president did today sets a terrible precedent that could allow any future president to completely cut the Senate out of the confirmation process, appointing his nominees immediately after sending their names up to Congress,” Mr. McConnell said. “This was surely not what the framers had in mind when they required the president to seek the advice and consent of the Senate in making appointments.”